The study identifies multiple characteristics of successful mediators in the international realm. As to each of such characteristics, the following question needs to be asked:

–Does this characteristics apply to mediators in private party disputes?

“The list of desired or desirable” characteristics for a successful international mediator “is very long indeed.” The list includes ” intelligence, stamina, energy, patience and a sense of humor.”

The following is a focus on four such characteristics.

Characteristic No. One: Impartiality

“Even-handedness or impartiality” is “traditionally cited as being strongly associated with effective mediation.”

“[A] high score in such areas as impartiality would seem to be at the heart of successful interventions in many situations . . . the parties will have confidence in a mediator only if he/she is, and is seen to be, impartial.”

“[T]he parties will have confidence in a mediator only if he/she is, and is seen to be, impartial.”

Question: Does this characteristic apply to mediators of disputes between private parties?

Characteristic No. 2: Rank and Prestige

“[T]here was some indication that the leader of a government, possessing rank and prestige and having some ‘leverage’, has a better chance of mediating successfully than any other actor.”

“Of the 34 mediation attempts made by government leaders, 32% were successful.”

“Indeed all classes of mediators exhibited at or above average probabilities of success, except for the leaders of international organizations. These mediators fared particularly badly in their mediation attempts, with a success rate of only 4%,” while even their lower-level representatives fared better:

–This disparity may “indicate the greater intractability of disputes that are referred to leaders of international organizations,” while their lower-level representatives as mediators (by comparison) have “a 25% probability of success.”

Question: Does this characteristic apply to mediators of disputes between private parties?

Characteristic No. 3: Active is Better than Passive

“At the low end of the spectrum (conciliation-facilitation), the mediator is in a fairly passive role, acting largely as a channel of communication or go-between for the parties . . . the mediator in this role exhibits very little control over the interactions between the adversaries.”

At the high end of the spectrum, the mediator is involved in “overseeing or guaranteeing an agreement between the adversaries.”

“Clearly, the more effective strategies in international mediation are the more active strategies. Mediators employing directive or substantive strategies are successful, on average, 41% of the time. Mediation strategies that allow mediators to introduce new issues, suggest new ways of seeing the dispute or alter the motivational structure of the parties, are more positively associated with successful outcomes than any other type of intervention. Active mediation strategies can affect, and be responsive to, a wider variety of dispute situations than less active ones.”

“A mediator must be seen as a participant in a conflictual decision–making system.”

Question: Does this characteristic apply to mediators of disputes between private parties?

“A mediator engages in behavior that is designed to elicit information and exercise influence. To exercise any degree of influence mediators need ‘leverage’ or resources.”

“Leverage or mediator power enhances the mediator’s ability to influence the outcome. The mediator’s task is primarily one of re-framing and persuasion. These are best achieved, . . . not when a mediator is unbiased or impartial, but when he/she possesses resources which either or both parties value.”

“Effective mediation in international relations is thus related more to resources than to impartiality.” This is especially true when the mediator is involved in “overseeing or guaranteeing an agreement.”

Question: Does this characteristic apply to mediators of disputes between private parties?

Conclusion

What do you think about the applicability of such characteristics to mediation between private parties?

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My name is Donald L. Swanson (please call me “Don”). I’m an attorney in Omaha, Nebraska, and am a shareholder in the law firm of Koley Jessen P.C., L.L.O. I’ve been practicing business bankruptcy law for more than three decades and represent all types of bankruptcy constituencies, including debtors, creditors, committees, trustees, and § 363 purchasers.
I have extensive mediation experience in both bankruptcy and non-bankruptcy courts. Moreover, I have a decades-long background in resolving multi-party disputes while representing committees and trustees.
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